LRC submissions to 60th Ordinary Session of the African Commission

The Legal Resources Centre (LRC) attended the 60^th Ordinary Session of the African Commission on Human and Peoples’ Rights (African Commission), held from 8 May 2017 in Niger, as well as the NGO Forum that took place over the preceding weekend.

During the NGO Forum, the LRC and the Kenya Human Rights Commission, on behalf of the International Network of Civil Liberties Organizations (INCLO), hosted a panel on “Surveillance as a threat to privacy rights and doorstep to further violations: A discussion on Africa’s unfolding experiences”. The purpose of the panel was to raise awareness of the case studies and recommendations contained in the report prepared by INCLO members titled “Surveillance and democracy: Chilling tales from around the world”.  A copy of the INCLO report is accessible here (PDF).

While surveillance has a clear and direct impact on the right to privacy, it is well-established that such violations of the right to privacy also impact the enjoyment of other rights, including the rights to freedom of expression, association and assembly, and hinder the work being done by civil society organisations and the media.  Surveillance is therefore a matter of importance that affects all organisations, regardless of the specific focus area of work.

The LRC also delivered a statement (see below) to the African Commission, focusing on specific issues raised by the African Commission in its concluding observations and recommendations following the 2016 review of South Africa’s second periodic report under the African Charter on Human and Peoples’ Rights (African Charter). The concluding observations and recommendations were adopted by the African Commission in June 2016, and a copy is accessible Concluding Observations and Recommendations (PDF).

Building on these concluding observations and recommendations, our statement to the African Commission during the current session dealt with the following three key issues: (i) information rights, in particular the rights to freedom of expression and privacy; (ii) the extractives industry and the environment, as well as corporate accountability more broadly; and (iii) the need for effective remedies for victims of torture.

The South African government also delivered a statement to the African Commission, in which the following issues were highlighted: (i) the right to education; (ii) the plight of women; and (iii) the challenge of migration and the attacks against foreign nationals.

During this statement, Ambassador Ntshinga, delivering the statement, stated that “[h]uman rights remains embedded in our foreign policy”, and that South Africa will “continue to work towards the entrenchment of democracy and the respect for human rights on the African continent through continental and regional bodies”.  Regarding the violent attacks against foreign nationals, Ambassador Ntshinga stated to the African Commission that “[w]e condemn the violence in the strongest possible terms and sincerely apologise to those who were affected”. A copy of the South African Government statement 60th session African Commission is accessible.

Lastly, this session marked the launch of two important legal documents by the African Commission, both of which are important contributions to the work being done on these issues in both regional and domestic contexts:

• General Comment No. 4 on the Right to Redress for Victims of Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment (article 5 of the African Charter); and
• African Commission guidelines for policing assemblies in Africa: achpr_guidelines_on_policing_assemblies_eng_fre_por_ara.

For more information about the work of the African Commission, visit www.achpr.org.  The next session of the African Commission, scheduled to be held in October/November this year in The Gambia, will celebrate the 30^th anniversary of the African Commission coming into existence.

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STATEMENT OF THE LEGAL RESOURCES CENTRE

AT THE 60^TH ORDINARY SESSION OF THE AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS, HELD IN NIGER

9 MAY 2017 | OBSERVER STATUS NUMBER 376

Honourable Chair, Honourable Commissioners, state representatives, national human rights institutions and fellow NGOs:

Last year, South Africa came before the African Commission on Human and Peoples’ Rights (African Commission) for its review of compliance with its obligations in terms of the African Charter on Human and Peoples’ Rights.  The Legal Resources Centre (LRC) urges the South African government to pay due regard to the concluding observations adopted by the African Commission at its 20^th Extraordinary Session during June 2016, to recognise their binding nature and to take concrete steps to implement these recommendations.  In this statement, we wish to highlight three broad areas that arose within these concluding observations: (i) freedom of expression; (ii) the extractives industry and the environment, as well as corporate accountability more broadly; and (iii) the need for effective remedies for victims of torture.

As a point of departure, we recall that one of the concluding observations was to expedite the establishment of the Information Regulator in terms of the Protection of Personal Information Act, 2013.  We note that, since the publication of the concluding observations, the five members of the Information Regulator have now been appointed, and in this regard we wish to extend our sincere congratulations to the Honourable Chairperson, Advocate Tlakula, on her appointment as the head of the Information Regulator in South Africa.  We urge the South African government to provide the Office of the Information Regulator with all necessary support and resources to ensure that it is able to fully establish and operate without delay, and to ensure that it enjoys complete structural and functional independence to be able to undertake its mandate effectively.

Notwithstanding this development, we remain deeply concerned about ongoing surveillance in the country.  There are a number of documented allegations of members of civil society and the media have been placed under surveillance.  This is not only a violation of the right to privacy, but also directly affects the right to freedom of expression, the right to freedom of assembly and the right to freedom of association.  As a matter of first-hand experience, the LRC received a ruling from the Investigatory Powers Tribunal in the United Kingdom in 2015, revealing that an email address associated with the LRC had been subject to unlawful surveillance by the British Government Communications Headquarters.  Surveillance activities such as this will undoubtedly hinder the work of members of civil society and the media, and should be strongly condemned.  We further urge the South African government to fulfil its undertaking to reform the current surveillance framework to ensure that it is constitutionally-compliant.

We are further concerned by the proliferation of draft laws that, if passed into law, would likely have a deeply harmful impact on the right to freedom of expression.  We note, in this regard, the concerns expressed by the African Commission in its concluding observations regarding the Protection of State Information Bill and the Cybercrimes and Cybersecurity Bill, noting in particular the provision permitting journalists and members of the public to be prosecuted for possessing or disclosing state information.  We echo the call made by the African Commission in its concluding observations for the Protection of State Information Bill and the Cybercrimes and Cybersecurity Bill to be brought in line with regional and international standards and best practices.  In a similar vein, as noted by the African Commission in its concluding observations, we remind the government of its undertakings to decriminalise the common law crime of defamation, and urge the government to take steps in fulfilment of these undertakings.

We also take this opportunity to commend the 2017 Joint Declaration by Special Rapporteurs on Fake News, which was a well-timed and important contribution to the discourse, and was of significant value for civil society organisations in seeking to curb efforts by governments to use the so-called fake news rhetoric to unduly restrict the right to freedom of expression.  Across the continent, we see governments clamping down on the right to freedom of expression – particularly freedom of expression online – which affects all members of the public.  We urge the African Commission to continue its important work focusing on freedom of expression online specifically, including the impact that digital surveillance has on the enjoyment of this right.

With regard to the extractives industry and the environment, we note that mining and resource governance remains of serious concern to the LRC and the communities that we assist.  We remind the South African government of the African Commission’s 2012 resolution that emphasised “the disproportionate impact of human rights abuses upon the rural communities in Africa that continue to struggle to assert their customary rights of access and control of various resources”.  We urge the South African government to act with haste in considering and implementing the detailed recommendations contained in the African Commission’s concluding observations in relation to the extractives industry and the environment.

In particular, as we still wait for justice for those Lonmin mineworkers who were tragically killed at the Marikana massacre in 2012, we note the call from the African Commission for the South African government to report on the steps taken to implement the recommendations of the Marikana Commission of Inquiry and to address the underlying factors that precipitated the massacre.  Scant information is known about the efforts being undertaken to fulfil the recommendations of the Marikana Commission of Inquiry, and we urge the South African government to report comprehensively about the investigations undertaken and the consequences thereof.

This raises a broader question of corporate accountability.  In this regard, we note the ongoing work of the Inter-Governmental Working Group of the United Nations to develop a binding treaty for transnational corporations for violations of human rights.  The resolution establishing this working group was co-sponsored by South Africa, and provides an important opportunity for local communities to participate in their own development by ensuring community participation in the drafting of the treaty.  Given the direct impact that this has on Africa, it is imperative that African organisations play an active role in this process, and urge all organisations present to make sure that your voices are heard in this process.

The third issue relates to the lack of measures to provide reparations for victims of torture, which the African Commission urged the South African government to take measures to provide for.  The LRC currently represents a number of persons who allege having been tortured whilst incarcerated at the Mangaung Correctional Centre, a private prison operated by G4S Correction Services.  Our clients allege having suffered an array of violations, including having been electro-shocked, assaulted, forcibly injected and held in solitary confinement for extensive periods of time.  In our pleadings, we contend on behalf of our clients inter alia that this is a violation of their fundamental rights to human dignity, life, freedom and security of the person and of every detained person to conditions of detention consistent with human dignity.  It is self-evidently of significant importance to ensure that victims of acts of torture are able to access appropriate remedies for the violations that they have suffered.  In this regard, we welcome the adoption of the General Comment No. 4 on the Right to Redress for Victims of Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment, and commend all those involved, as General Comment No. 4 provides uniquely useful guidance on this matter.

Moreover, the LRC and our partner organisations in the International Network of Civil Liberties Organizations (INCLO) welcome the adoption and publication of the Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa.  The LRC notes in particular the forward-looking nature of the Guidelines, and commends the African Commission, the African Policing Civilian Oversight Forum and the Danish Institute for Human Rights for the various participatory processes which led to the finalisation of these Guidelines.  Particularly, we welcome the progressive guidance given to law enforcement officials on the use of force and firearms, including the proper use of less-lethal weapons.

Finally, as a general note, we call on the African Commission to urge the South African government to respect the rule of law, and to respect both the authority and the independence of those institutions mandated to protect the rule of law in South Africa.  The ability of such institutions to function independently is critical to the maintenance of democracy and rule of law in South Africa, and must be fiercely guarded.

[Ends]

 

 

 

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Should fracking happen in South Africa?

Photo: No Fracking Signs at Prince Albert – by Danie van der Merwe (Flikr)

The threat of fracking has been imminent in South Africa for almost a decade. But South Africa is just not ready for fracking. There are many detrimental effects of this mining activity on communities and the environment.  The regulatory requirements to mediate these effects are also not present. Allowing fracking to take place in South Africa would simply be disastrous.

Fracking, or hydraulic fracturing, is a technique used to extract gas from deep underground, which involves digging wells up to four kilometres deep. A mixture of water, sand and chemicals is injected at high pressure to crack shale rock formations and release the gas, which is then brought to the surface.

History of Fracking in South Africa

Fracking is not a new practice and dates back to the 1860s in the United States but started being used commercially in 2009. Currently, almost 95 percent of US states use fracking techniques. In South Africa, formal interest in fracking began in 2008; the potential areas of interest being in the Karoo and parts of KwaZulu-Natal (KZN). Since then, there have been a number of applications for exploration rights from companies such as Bundu Oil and Gas, Shell SA and Falcon Gas and Oil.

The threat of litigation around the imperfections of this process, and around the absolute lack of investigation into the technology and its impacts, resulted in the Minister of Mineral Resources, Susan Shabangu, declaring a moratorium on the issue of exploration licences in April 2011. The Department of Minerals and Resources (DMR) was instructed to set up a task team to explore the implications of fracking, the feasibility of the gas extraction, as well as its impact on the environment.

At that time, no timeline was given for when research would be conducted. The Minister commissioned a report from a group of different government agencies to inform her about whether fracking should go ahead or not. The problem with the task team responsible for the report was that it excluded representatives from key government departments. Only certain voices were heard in the report. This omission does not reflect administrative justice, a right to which we are entitled under the Constitution.

In September 2012, a little over a year later, the moratorium was lifted. Cabinet endorsed recommendations of the report on the lifting of the moratorium and mandated the Minister of the DMR to hold a series of public consultations with interested and affected stakeholders to provide further details.

Possible pollution events associated with fracking

Fracking typically requires 1000-2000 large truckloads of water, which means thousands of wells will require truckloads of water to be transported to the fracking site at significant environmental cost. Most of South Africa’s surface fresh water (98%) has already been allocated to existing users. This raises the question of how the fracking industry will source the millions of litres of water it will need to undertake its operations.

Fracking entails the pumping of toxic chemicals at high pressure, with water and sand, into underground shale rock formations. Some of the fracking liquid returns to the surface after use, and has to be disposed of without causing harm to the environment. The fracking liquid often consists of both toxic and radioactive sludge, which must be transported to hazardous waste management sites.

The most serious environmental concern related to fracking is that of ground water contamination. The potential risk to ground water comes from two sources: the injected water (water and chemicals) and the released natural gas. The water used in drilling shale gas is fused with sand and chemicals (corrosive inhibitors, surfactants, iron control chemicals, biocides, friction reducers and scale inhibitors). When these are injected down the well, there is a strong possibility of polluting underground water. Freshwater reserves can also be contaminated when the fluid is spilt at the site of the wells or in other accidental spills.

Fracking can release gas and / or vapour into the atmosphere. These emissions are either of original additive chemicals, entrained contaminants from the shale formation or the methane released by the fracking process. There is an ongoing debate about the relative leakage of methane into the atmosphere from the exploitation of shale gas in comparison to the emission rate from conventional gas. This is potentially important because a high leakage rate might mean that methane released into the atmosphere from shale gas extraction could have a higher net greenhouse gas footprint, than, for example, coal. Fracking operations should, therefore, seek to minimize all emissions into the atmosphere and monitoring processes need to be actively enforced.

Lastly, shale gas development involves continuous activity conducted over a sustained period of time (this can vary considerably, but is often several years) over the entire course of a day, seven days a week. The noise of compressors, generators and drilling, extensive truck movements, intrusive un-natural lighting overnight and the release of bad smelling chemicals can have significant negative health and well-being impacts on nearby communities, especially in the context of quiet rural and semi-rural areas that also relatively densely populated.

Do we have the regulatory requirements to undertake fracking?

What are the regulatory conditions that currently exist that would affect fracking? The Mineral and Petroleum Resources Development Act (MPRDA) is the central statute that governs applications for and the granting of rights and permits to conduct shale gas extraction. The requirement for the submission and approval of an Environmental Management Plan (EMP) for an exploration and production right allows for the potential environmental impacts of shale gas extraction to be investigated prior to such activities being conducted.

If waste will be generated by any activity, an assessment as to whether the National Environmental Management Water Act (NEMWA) applies to the activity will need to be made and, if required, any requisite waste management licenses applied for and obtained prior to starting any activity requiring the management of the waste.

Should any company succeed with exploration, a water use license in terms of the National Water Act is to be secured through applications for individual or integrated water use licenses. Various factors will have to be considered for the granting of the licence – one of which is the availability of resources.

How effective are these measures to mitigate the impacts of fracking?

Should the South African government decide to issue exploration and production rights for shale gas fracking, the least we can expect is an appropriate regulatory regime that is implemented, monitored and enforced. The current fracking regulations and the current pollution control laws do not achieve this.

We do not have the capacity or will at local – and national government level to do the basics of waste management, such as collecting solid waste, preventing dumping, closing down illegal mining operations and controlling sewage and industrial pollution. We simply will not be able to handle the extra burden of fracking waste once fracking activities begin.

Fracking can be extremely water-intensive, depending on the precise techniques used. This may pose risks in the KZN Midlands, and other parts of the country which are currently experiencing drought conditions.

In theory, it seems that South Africa’s pollution control laws do allow for mining; however, due to the nature of fracking, the current pollution control laws may not be sufficient to deal with the detrimental and long-term effects of fracking.

The environmental impacts of conventional mining in South Africa have never been regulated effectively. To the extent that appropriate regulations do exist, their implementation has been ineffective. As a result, mining has had, and continues to have, significant negative impacts on the environment. Many of these impacts, such as acid mine drainage, cannot be easily remedied and will continue to impose heavy financial, health and environmental costs on society for the foreseeable future.

I would argue then, that with the current regulatory environment, as well as the potential harm caused by fracking, the government will need to rethink its regulatory regime before allowing fracking to happen.

by: Shaun Bergover, candidate attorney

Disclaimer: The opinions expressed by the Realising Rights bloggers and those providing comments are theirs alone, and do not reflect the opinions of the Legal Resources Centre. The Legal Resources Centre is not responsible for the accuracy of any of the information supplied by the bloggers.

The Day Human Rights Became Immoral

On 3 March 2015, the Portfolio Committee for Justice began the public consultation process on the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill 18 of 2014. The Legal Resources Centre attended Parliament and presented oral submissions which were based upon our written submissions of 4 March 2015.

The Amendment Bill seeks to implement two Constitutional Court judgments which have become known as the Teddy Bear Clinic case and J v the NDPP case. Both of these cases dealt with aspects of the constitutionality of certain provisions of the “Sexual Offences Act”. The Teddy Bear Clinic matter dealt with the constitutionality of criminalising consensual sexual behaviour of adolescents between the ages of 12 years and 16 years, and J dealt with the automatic recording of the details of minors convicted of sexual offences on the National Register of Sex Offenders. The amendment that will address the constitutional concerns raised in the Teddy Bear Clinic case has received much more media attention than the issue of recording minors’ details.

It seems that the reason for this was on full display during the public consultation process this past week, when a number of religious organisations, churches and institutions came to Parliament to object to the amendment which, in essence, seeks to recognise normal sexual behaviour between consenting adolescents. The Constitutional Court has recognised adolescence as a difficult period in a person’s growth and that adolescents require support and not prosecution. These particular amendments will give adolescents the ability to experience their normal sexual exploration and development by not criminalising this behaviour.

Those who attended on behalf of the religious community did not afford the same recognition to sexual behaviour between adolescents. This apparently normal period in the development of human beings became “episodes of consensual abuse”, “unnatural urges and needs” and “immoral and sinful”.

Repeatedly, those of us who believe in human rights and the Constitution where told that we hold no moral compass. At one point in the presentations, it was stated that civil society organisations funded by the west have become “agents of Satan”. They referred to a Constitution in which “the moral values of the majority were not reflected in the liberties contained in the Constitution”. One could almost forget that the Constitution, in fact, recognises rights for South Africans and instead begin to believe that they were in fact liberties; liberties that we can either be deprived of or which we are happy to give up, if only government would allow us to do so.

We recognise and acknowledge that, as South Africans, we have a wonderful opportunity and right to participate and engage in the process of enacting legislation. This is a right that was hard won and we continue to struggle for its realisation.

But we further recognise that we need to ensure that the values in the Constitution and the rights enshrined therein are protected by taking a proactive stance in engaging at the parliamentary level in order to ensure that legislation that is passed within its halls are indeed in compliance with the Constitution. If we do not, we run the risk of parliamentarians only hearing the voices of those who are too eager to give up rights on our behalf.

The amendments to the Sexual Offences Act will, in all likelihood, be adopted by Parliament; there is, after all, a Constitutional Court order mandating them to do so. We ask that Parliament implement the tolerant and accepting nature of the Constitutional Court in both its recognition of the support needed for adolescents during a difficult time in their lives, as well as the need to de-criminalise their normal sexual behaviour.

We echo the sentiments of the Chairperson of the Portfolio Committee in saying that religious leaders and institutions have a duty not only to educate their members on their religious duties, but also to ensure that they use their platforms to educate the public on our Constitution and the rights enshrined therein.

By: Charlene May

Disclaimer: The opinions expressed by the Realising Rights bloggers and those providing comments are theirs alone, and do not reflect the opinions of the Legal Resources Centre. The Legal Resources Centre is not responsible for the accuracy of any of the information supplied by the bloggers.

Why the Wagon Wheel Distorts Customary Practices

On the 4-6 September 2014, the Department of Rural Development and Land Reform (DRDLR) hosted the Land Tenure Summit. I joined the Communal Land Tenure session, which was attended by a large contingent of traditional leaders. The two presenters were Aninka Claasens from the Centre for Law and Society and Judge Ngwenya, the current chairperson of the Kwa-Zulu Natal Inghonyama Trust.

Aninka Claasens presenting at the Land Tenure Summit

During the presentations, Judge Ngwenya argued that land title would be best registered under traditional councils, giving an example of Inghonyama Trust’s current administration of land for the benefit of rural communities in KZN. In contrast, Aninka Claasens argued that the Interim Protection of informal Land Rights Act 31 of 1996 (IPILRA) is the only hope for people in communal areas when their land rights are threatened, but that it needs to be upgraded. She argued that land rights would be best placed in the hands of households, instead of under traditional authorities as they were established during Apartheid.

The audience was given an opportunity to debate the issue of the DRDLR’s Wagon Wheel proposal of land tenure; a proposal in which land ownership is based on “pre-colonial” models of ownership and access whereby the royal household is considered to have separate, independent land while sharing the remaining land with other households. The power of land allocation is vested in the hands of traditional leaders.

The question was whether the Wagon Wheel would provide the solution to the current tenure insecurity and abuse of power by traditional leaders that people in communal areas are subjected to under informal land title.

As a resident of a communal area and having been born and raised in a royal family, I was the first to comment. I have seen how land allocation was previously administered before the Apartheid system was imposed, and have experienced the abuse of power by current traditional leaders in the name of distorted customary law that has been adopted from the colonial and Apartheid eras. I am of the view that the Wagon Wheel proposal gives rights to royal households that they never had under customary law and tradition. Similar to what occurred under the colonial and Apartheid governments, the model will further distort living customary law and traditional leaders will be allowed to manage land as if it is their personal property.

Land has always been the property of all households in a community who had joint and equal capacity to make decisions about regulating the land. It is not customary to treat the royal household in a superior way. Royal households have to remain equal to other households, as per the Constitution. It should also be taken into account that the Constitution only recognizes leadership and does not give any governance roles to traditional leaders (despite receiving salaries and other subsidies). Many practices that used to take place within communal areas have changed, to the extent that the role of traditional leaders would no longer operate exactly as before.

The Minister has argued that royal households have traditionally had the responsibility of taking care of the needs of the poorest. If they have extra land, they will be able produce and feed the poorer households from that resource. However, the practice whereby people can approach the traditional leaders for safety, as well as get food when they are hungry, has no space in the current setup under which the traditional leader and the people live. Most traditional leaders are not currently residing in communities; they reside in townships and cities and the few who reside in communities are not easily accessible.

Under the Wagon Wheel proposal, traditional councils and leaders are to hold the land title and administer it. During Apartheid and presently, administration of land in communal areas has been abused by traditional leaders. They sell land for their own benefit without consulting land rights holders and do not account to anyone. Most traditional leaders are illiterate, because once they know that they are going to be leaders, they stop attending school and wait to ascend the throne with little or no knowledge of traditional systems to deal with communal land issues. The Wagon Wheel is not an ordinary proposal; it needs to be implemented by people with particular skills that most current traditional leaders do not have. It would need a big budget to capacitate them to the level where they can make meaning out of it.

Judge Ngwenya presenting at the Land Tenure Summit

I asked Judge Ngwenya to tell participants how the Inghonyama board members were chosen. My fear is that most trustees are nominated rather than elected into the position and that traditional leaders will appoint their relatives and friends. When he was given opportunity to respond to questions that audience members raised, he did not respond in respect of the question I specifically posed to him. My suspicion may be correct.

During his presentation of how the Trust works, he said that the Wagon Wheel proposal mirrors the Trust’s administration. However, it became clear that community members are excluded in the allocation of land and discussions regarding any application for land access and use. If this method is to be followed, land rights holders will be bypassed and their plough fields and grazing land will be sold to outsiders without their consent.

I observed that during the reporting session, the feedback did not include many of the debates and recommendations made by the audience. The Summit did not allow an opportunity for participants to choose their scribes and representatives. Instead, staff from the Department undertook these tasks. I will not be surprised if the Department of Rural Development and Land Reform approves the Wagon Wheel model, despite our criticisms and concerns.

By Shirhami Shirinda – Legal Researcher at the Legal Resources Centre

Disclaimer: The opinions expressed by the Realising Rights bloggers and those providing comments are theirs alone, and do not reflect the opinions of the Legal Resources Centre. The Legal Resources Centre is not responsible for the accuracy of any of the information supplied by the bloggers.